[2025] UGCA 188

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

### HOLDEN AT MASINDI

[Coram: F. Zeqa,DCJ, C. Gashirabake and K K. Katunguka, JJA.]

### GRIMINAL APPEAL NO. 0282 OF 2019

#### BETWEEN

RUSONGWA MEDARD APPELLANT

#### AND

UGANDA RESPONDENT

lAn appeal hom a decision of the High Courl of Uganda at Masindi (Anna. B. Mugenyi, J) in Cnmrnal Sesslon Case No. 01 06 of 201 I delivered on the 1 |h day of July, 201 9l

## JUDGMENT OF THE COURT

#### lntroduction

- t1l The appellant was indicted in the High Court of the offence of aggravated defilement contrary to Sections 129 (3)(4)(a) of the Penal Code Act. Upon arraignment, the appellant pleaded not guilty, was tried, convicted and sentenced to 40 years' imprisonment. - 12) Being dissatisfied with the decision of the trial Court, the appellant filed this appeal on the following ground;

Thatthe trialjudge erred in law and fact in sentencing the appellantto 40 years' imprisonmentwhich is deemed to be manifestly harsh and excessive.

t31 The appellant prayed that the sentence be set aside and substituted with an appropriate sentence.

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# Backqround

- [4] The appellant and UJ (herein referred lo as "the victim") were all residents of Kyebitaka village, Kyangwali Sub-county, Hoima District. The victim was a daughter of Kukwanabenzi Espera and Minarangwa Sempagale. - [5] On the 3d day of April, 2016 at Kyebitaka village in Hoima District at around 10:00 a.m, the victim's mother was in her garden planting maize, when she heard her baby crying in the tobacco store near her garden, The victim's mother rushed to see what was happening and upon reaching the store, she found the appellant naked and on top of the victim having sexual intercourse. She immediately made an alarm which atkacted neighbors like Bigirimana Buteme who found the appellant and victim in the store but not in the act. - [6] The appellant was arrested and taken to Kyangwali Police Post where he was detained and eventually fonararded to Hoima Police Station. He was examined and found to be an adult of sound mind at the time the offence was committed. He was also interrogated and he denied the charges. The victim was examined and found to be a girl of 5 years with a minor slit on the hymen. - [7] The appellant was arraigned before Court on a charge of aggravated defilement. He pleaded not guilty, was tried, convicted and sentenced to 40 years' imprisonment.

## Reoresentation

- [8] At the hearing, the appellant was represented by Ms. HarrietAjok on State brief, while l\,1r. Simon Peter Semalemba, Assistant Director of Public Prosecutions appeared for the respondent. Both parties filed written submissions which were adopted as their legal arguments. - [9] Counsel for the appellant sought leave of Court to appeal against sentence only under Rule 43(3) (a) of the Judicature (Court of Appeal) Rules and Section 132 of the Trail on lndictments Act. Leave was granted.

# Apoellant's Submissions

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- [10] Learned Counsel for the appellant submitted that the trial Judge completely disregarded the mitigating factors in favour of the appellant in sentencing him to 40 years' imprisonment which is harsh for the 70-year-old offender. Counsel made reference to the Constitution (Sentencing guidelines for Courts of Judicature) (Practice) Directions, 20i3 which provides the factors for Court's consideration before imposing a custodial sentence, such as the age of the offender. - [1'1] Counsel submitted that from the record, at page 24 line 11, the Court recognized the fact that the appellant was about 70 years of age, even stating that he was fit to be the victim's grandfather, yet did not comply with the provision which mandates Court to consider the issue of age of the offender. Counsel for the appellant also faulted the trial Court for not reflecting on the record, the mathematical deduction of time spent on remand which left the sentence vague. - [12] Counsel for the appellant further relied on the decision in Ssekandi Muhammed vs Uganda, Criminal Appeal No. 364 of 2016 and Kagoro oeo vs Uganda, Criminal Appeal No 82 of 2011 to submit that Court is bound to follow the principle of parity and consistency in sentencing. - [13] Counsel referred to several decisions including; Babua Ronald vs Uganda, Criminal Appeal No. 303 of 2010 where this Cou( set aside the sentence of life imprisonment for defilement for being wrong in law and substituted it with a sentence of 18 years' imprisonment. Counsel cited the Supreme Court decision in Katende Ahamad vs Uganda, Criminal Appeal No. 6 of 2004 where Court found that a term of 10 years' imprisonment would meet the ends of justice where the appellant had defted a2/z years old victim. Counsel also cjted Lukwago Henry vs Uganda, Court of Appeal Criminal Appeal No. 0036 of 2010, where the appellant, being a grandfather, defiled his granddaughter aged 2/z and was sentenced to 22 years' imprisonment. This Court was of the view that the sentence was harsh; it was set aside, and a sentence of '18 years' imprisonment was preferred. - [14] ln conclusion, Counsel for the appellant d that the sentence of 40 years be set

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aside and substituted Ior '10 years' imprisonment in light of the appellant's age and following the principle of parity and consistency.

# Respondent's submissions

- [15] ln reply, Counsel lor the respondent conceded that the learned trial Judge while passing the sentence of 40 years' imprisonment against the appellant did not specifically deduct the period the appellant had spent on remand and did not take into account the mitigating factors in favour of the appellant. - ['16] Counsel for the respondent relied on the case of Mutebi Ronald vs Uganda, C. A. C. A 0383 of 2019, where this Court cited with approval the case of Rwabugande Moses vs Uganda, SCCA No. 25 of 2014 which held ,nfer a/la that any sentence passed without taking into consideration the period spent on remand is illegal and conkary to the provisions of Article 23(8) of the Constitution. - [17] Counsel submitted that page 24 of the record of proceedings clearly reflects that the learned trial Judge did not arithmetically deduct the remand period from the sentence while sentencing the appellant to 40 years' imprisonment. Counsel invited this Court to invoke its powers under Section ll of the Judicature Act and resentence the appellant to an appropriate sentence in the circumstances.

# Consideration of the Aopeal

['18] The duty ofthe first appellate Court as provided under Rule 30(1)ofthe Judicature (Court of Appeals Rules) Directions, is to re-appraise all material evidence that was adduced before the trial Court and come to its own conclusions of fact and law while making allowance forthe fact that it neithersaw nor heard the witnesses testify. This principal was also stated in Henry Kifamunte vs Uganda, Supreme Court CriminalAppeal No.10 of 1997.

ln this regard, we have carefully read the record of the trial Court, the submissions

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of both counsel and the authorities cited, and others not cited by the parties.

### Resolution of the Appeal

[19] This appeal is premised on one ground related to sentence only. The law regarding sentencing by appellate Courts is well settled. The Supreme Court in Kiwalabye Bernard versus Uganda, Criminal Appeal No. 143 of 2001, stated as follows;

"The appellate Court is not to inteilere with the sentence inposed by a trial Court where the Couft has exercised its discretion of sentence, unless the exercise ol discretion is such that it results in the sentence imposed to be manifestly excessive or so low as to amount to a miscaniage of justice, or where the trial Coutt ignores to consider an impoftant mafter or circumstance which ought to be considered while passing senfence or where senfence imposed is wrong in principle."

Further still, the appellate Court will not normally interfere with the exercise of that discretion unless the sentencing Court passes an illegal sentence. See: Kyalimpa Edward versus Uganda, Supreme Court CriminalAppeal No.10 of 1995.

- [20] AtthecoreofthisappealisthatthetrialJudgeerredinlawandfactinsentencing the appellant to 40 years' imprisonment which is deemed to be manifestly harsh and excessive. - [21] The sentencing order of the trial Judge on Page 24 of the record of appeal was couched as follows;

"Court: Convict 60 to 70 years committed a grave oflence against a very young girl aged 4 to 5 years leet (siQ to be his grand child on (sic) great grandchild. He was supposed fo protect ltake care of her and not hurt her in such an evil mannen This ollence is rampant in this area and must be stopped. I will give a detenent senfence of 10 yearc given the circumstances of fhlb case minus period on remand,"

[22] Counsel for the respondent, conceded that the trial Judge did not specifically deduct the period the appellan t on remand contrary to Article 23(8) of

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the Constitution which provides that;

"Where a person r.s convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in inposing the term of imprisonment." (enphasis ours)

- [23] ln Rwabugande v Uganda (CriminalAppeal25 of 2014) [2017] UGSC 8, the Supreme Court found it pertinent to re-visit its previous decisions on the meaning of the phrase in Article 23 (8) of the Constitution. The position in the earlier decisions of Kizito Senkula vs. Uganda SCCA N0. 24 of 2001; Kabuye Senvewo vs. Uganda SCCA N0. 2 o12002; Katende Ahamad vs. Uganda SCCA NO.6 of 2004 and Bukenya Joseph vs. Uganda SCCA No. 17 of 2010 was to the effect that, the words "to take into account" do not require a trial court to apply a mathematical formula by deducting the exact number of years spent by an accused person on remand from the sentence to be awarded by the trial court. - [24] However, the learned Justices found it right to depart from the earlier decisions mentioned above, and held that;

"lt is our view that the taking into account of the period spent on remand by a court is necessarily arithmetical. Ihis is because the period is known with ceilainty and precision; consideration of the remand period should thereforc necessarily mean reducing or subtracting that pertod from the final sentence. That period spent in lawlul custody prior to the trial must be specifically credited to an accused.

We must emphasize that a sentence couched in general terms that court has taken into account the time the accused has spenl on remand is ambiguous. ln such circumstances, it cannot be unequivocally ascertained that the couft accounted for the ranand period in aniving at the final sentence. Article 23 (8) of the Constifution (supra) makes it mandatory and not discretional that a sentencing judicial officer accounb for the remand period."

[25] We observe that there is no conte nti ⁿ that the trial Judge erred in her failure to

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deduct with specificity the period spent on remand before sentencing the appellant. We also observe that the commitment warrant on page 38 of the record of proceedings did indicate the 40-year sentence was less three (3) years, three (3) months & three (3) days spent on remand. In light ofthe foregoing, we find that the kral Judge was required in their sentencing order to mathematically deduct the period spent on remand. For this reason alone, this Court should set aside the sentence for being ambiguous and illegal.

- 126l The second aspect on which the appellant faults the trial Judge is that she did not consider that the appellant was of advanced age. ln the Rwabugande V Uganda (supra) decision, the Supreme Court also opined that other factors developed under common law such as age of the convict; fact that the convict is a first time offender; remorsefulness of the convict and others are discretional mitigating factors which a court can lump together. That under Guideline 15of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the court shall deduct the period spent on remand from the sentence considered appropriate after all factors have been taken into account. - [27] From the foregoing, this Court invokes its powers under Section 11 of the Judicature Act. Having re-appraised the evidence adduced at trial, appreciated the mitigating factors that the appellant is of advanced age, and the aggravating factors that the offence was committed against the victim aged only 5 years, this Court sets aside the sentence of the trial Court and sentences the appellant to 30 years' imprisonment. The pre-trial period spent on remand of 3 years, 3 months and 3 days is deducted. The appellant shall serve a period of 27 years, 9 months and 27 days to run from date of conviction, the 11th of July 2019. The appeal succeeds.

#### Decision of Court

- [28] ln the linal result, this appeal succeeds and is allowed - years, I months and 27 days to run from Pgl The appellant shall serve of ²⁷

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date of conviction, the 11th of July 2019.

We so order.

$13$ ^th day of <u>fune</u> $\ldots 2025.$ Dated and delivered at Masindi this ...

Flavian Zeija (PhD) **Justice of Appeal**

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**Christopher Gashirabake Justice of Appeal**

Ketrah Kitariisibwa Katunguka **Justice of Appeal**